Ætna Life Ins. Co. v. Wimberly

• Decision Date: 28 October 1908
• Citation: 112 S.W. 1038
• Parties: ÆTNA LIFE INS. CO., OF HARTFORD, CONN., v. WIMBERLY.
• Court: Texas Supreme Court

112 S.W. 1038

ÆTNA LIFE INS. CO., OF HARTFORD, CONN., v. WIMBERLY.

Supreme Court of Texas.

October 28, 1908.

Error from Court of Civil Appeals of Third Supreme Judicial District.

Action by Lillie M. Wimberly against the Ætna Life Insurance Company, of Hartford, Conn. From a judgment for plaintiff, affirmed by the Court of Civil Appeals (108 S. W. 778), defendant brings error. Reversed, and judgment rendered for defendant.

W. J. Moroney, for plaintiff in error. J. M. Ralston and Moore & Moore, for defendant in error.

BROWN, J.

On the 1st day of October, 1904, the plaintiff in error issued to Garee A. Wimberly a life insurance policy in the sum of $1,000, payable at his death to his wife, Lillie M. Wimberly. The policy provided that the premiums should be paid annually in advance on the 1st day of October, at or before 5 o'clock, and the first premium was paid upon the issuance of the policy. The policy contained this provision: "Policies cease in accordance with their terms if the premiums are not paid on or before the day stipulated therein for such payment, except that a grace of 30 days is allowed for the payment of any premium after the first, provided that with the payment of such premium interest is also paid thereon for the days of grace taken." The 1st day of October, 1905, was Sunday, and the premium which fell due on that day was never paid by the deceased, who died on November 1st of that year. The plaintiff in error contends that the 30 days of grace expired with the 31st day of October, while counsel for defendant in error contends that the 30 days of grace began at the expiration of the 2d day of October and embraced all of the 1st day of November. If there had been no provision for days of grace in the policy, the assured would have had the right to pay the premium on the 2d day of October, Monday. This proposition of law is not disputed by the plaintiff in error. It is claimed by counsel for the defendant in error that because the day of payment fell upon Sunday, and the assured had the right to pay the premium on Monday, that made Monday the day of maturity, just as if it had been named in the policy, and that the 30 days of grace ran from that day. If the plaintiff in error's contention is correct, it determines this case, and it will be unnecessary for us to pursue the investigation of the other questions presented.

The 1st day of October in the year 1905 being Sunday, if the days of grace had not been allowed by the...